MOS 2276 Lecture 1.pdf

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Western University
Management and Organizational Studies
Management and Organizational Studies 2276A/B
Phillip King

The Law of Tort 2013-01-17 1:38 PM Current Events • Erin Schwartz o 2008  developed a software program to download documents o Wasn't charged for making available judicial information to public o Was charged for making academic journals available to public o SOPA  Halted through efforts of a number of people  Erin Schwartz was behind the anti-SOPA movement o Felt that information should be shared, and not controlled and kept private o Committed suicide o Polarized figure  both loved and hated o Changed legal landscape when it comes to information on the Internet o Web Programmer & Activist Canadian Law • Idea of precedence  treat like cases alike o Gives us consistency; provides fairness o Provides efficiency; same facts = same result o Provides us with predictability and certainty o 2 major parts:  Treat like cases alike; chronologically, we can expect a court to rule in a similar way to how a court has already ruled  Lower courts must follow decisions of higher courts  Courts of a particular province are not required to follow decisions of courts in other provinces o 2 biggest criticisms:  May result in courts not examining cases carefully enough; tendency to apply precedent without thoroughly investigating the merits of a particular or individual case  Makes the system rigid/inflexible; how do we move the law forward if we always follow previous decisions?; how does the law change? • In the business world, anything that lessens risk is valuable • In Europe, Quebec, and Louisiana  use the civil code; does not rely on precedence o Does not apply within Quebec but applies to Quebec • 2 cases are never the same o How similar does a case have to be for it to be a precedent?  it’s up to the judge  When a judge says cases are not sufficiently similar, this is referred to as distinguishing the case o Up to the judge to decide which precedent to follow • If a decision is binding on a lower court, it’s not the entire decision that’s binding, it’s the ratio of a case o Ratio – legal principle for which that case stands; reason for the decision; o If it isn’t the ratio, then it’s obiter; combination of the legal fact and the result o Obiter – other stuff said; when the judge says “if the facts were different, then the result would’ve been different”; never binding • Can only appeal on matters of law; cannot appeal on matters of fact o Matters of fact are determined at trial • Provincial court of appeal  3 judges • Supreme Court of Appeal  up to 9 judges • Although courts usually follow their own decisions, they don’t have to, thus allowing the law to move forward • In 1928, women were not legally people • Legislation trumps case law; legislature can change the law • Courts should be very reluctant to modify the common law in any way • In Canada, we live in a constitutional democracy where the government is not above the law o In Canada, you can sue the government Cases • Malette v. Shulman – Ontario Court of Appeal o Jehovah’s witness woman with a card stating not to give her blood transfusions o Doctor gives her blood transfusion anyway, knowing she had t
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